The Alaska Supreme Court has adopted two rules – Criminal Rule 11(i) and Delinquency Rule 23(f) – which authorize judges to refer cases to tribes and other entities for recommendations as to the appropriate sentence or disposition. This was done at the recommendation of the court system’s Fairness, Diversity and Equality Committee.

Retired Superior Court Judge Eric Smith was asked by the Court to implement these rules. He chose to do so in large part by working with tribes to sign an agreement, called a Plan, by which a tribe and the court system may agree to a formal and binding procedure by which the referral process will occur. He chose this approach because he wanted to institutionalize the process, rather than relying on the willingness and availability of a particular judge to refer cases to tribes. In furtherance of this goal, he developed a template which has been approved by the court system (including then Chief Justice Fabe) to show to the tribes as a possible approach.

The basic model is as follows: i) the tribe monitors the calendar on the internet and notifies the relevant state court when the tribe is interested in a particular case; ii) the court will send the relevant documents to the tribe; iii) the tribe will look over the paperwork and if it decides to get involved in that case, it will notify the court that it wants to conduct a “proceeding” as to that defendant (generally a circle-based determination of sentencing recommendations, but the term is purposefully broad since different tribes have different practices); iv) once the defendant is convicted, the court will refer the matter to the tribe if the parties agree and will set sentencing out long enough for the tribe to conduct the “proceeding;” v) the tribe will conduct the proceeding and let the court know the outcome, which serves as a formal recommendation to the court as to the sentence or disposition; vi) the court will carefully and respectfully consider the recommendation and impose sentence.

Thus far, the Alaska court system has signed formal Plans with a number of tribes, including the Sun’aq Tribe of Kodiak, Qagan Tayagungin Tribe of Sand Point, Kenaitze Ts’ilq’u Circle, Togiak, Shishmaref, Solomon, Chickaloon, Nikolai, Nulatto, Mentasta, and Kluti Kaah tribes, as well as the Tlingit-Haida Central Council, the Hmong Center of Alaska, and the Polynesian Community in Anchorage. The court system has also developed a set of forms that the tribes can use for filing the notifications and sentencing recommendations discussed above. These can be found at http://courts.alaska.gov/rjp/index.htm.

A number of other tribes are also actively considering participating in this program.

IPI Advisory Committee member Polly Hyslop, Assistant Professor at the University of Alaska at Fairbanks points out that inclusion of funding to help tribes support their activities under the agreements with the state would be a further (and needed) improvement to this system. Additionally, Hyslop points out, under this arrangement the state retains control, while more fully expressed peacemaking would requires local control rather than provision of recommendations for sentencing. Nonetheless, this model is a step in the right direction and Retired Judge Smith has generously made himself available for questions and other assistance for those interested in more information.